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Building owners not responsible for deaths of birds that fly into it, judge rules

Many birds are killed when they fly into Consilium Place in Scarborough. (STEVE RUSSELL / TORONTO STAR FIL:E PHOTO)

By Josh TapperStaff Reporter

Wed., Nov. 14, 2012

Environmental groups and animal rights advocates have lost a landmark lawsuit in the years-long fight to curb fatal bird collisions.

The provincial court ruling Wednesday comes more than two years after Ontario Nature and Ecojustice, an environmental law firm, launched an unprecedented action against Menkes Developments, claiming more than 800 birds were killed or crippled after crashing into its Consilium Place property between 2008 and 2009.

The judgment, issued by Justice of the Peace William Turtle, dismissed three charges against Menkes leveled under the federal Environmental Protection Act and the Ontario Society for the Prevention of Cruelty to Animals Act. Consilium Place, a cluster of highrise towers near Highway 401 and McCowan Rd., was long considered Toronto’s deadliest building complex for bird strikes.

The prosecution had argued that sunlight reflected from Consilium’s mirrored glass windows was considered radiation and, therefore, a contaminant under the Environmental Protection Act.

Reflected light, they argued, deceives birds into believing the building’s windows are continuous sky. While most crashes are fatal, court heard many birds were left crippled, with broken necks, broken beaks, brain trauma or spinal fractures.

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According to the non-profit Fatal Light Awareness Program, which has tracked bird collisions in the GTA since 2003, more than 7,000 birds slammed into Consilium’s windows between 2000 and 2010. FLAP has estimated at least one million birds die in Toronto-area building collisions each year as they fly northward on popular migratory paths over Lake Ontario.

While Turtle acknowledged it is indisputable birds are dying at Consilium Place, his judgment said Menkes could not be held responsible for the natural discharge and reflection of sunlight — and made no active effort to harm birds.

Menkes has never denied the deaths and attempted to fix the problem after hearings started in 2011. (Menkes sold Consilium to Kevric Real Estate Corporation in July.)

Working with FLAP, Menkes retrofitted the towers with an outer-layer film designed to steer birds away. The company also established “bird action stations” to assist FLAP volunteers in their efforts to collect and tag bird strike victims, and obtained a federal permit to salvage dead birds on site, according to Turtle’s ruling.

“We’re disappointed by the decision,” said Ecojustice lawyer Albert Koehl. “However, the irony is that the building has now been retrofitted with window film. The number of collisions is dramatically down, so there are obviously solutions that do work.”

Sonya Buikema, vice-president of commercial property management at Menkes, said the company spent thousands of dollars on the retrofits.

As a result, bird collisions at the property have dropped to about 200 so far this year, according to Michael Mesure, FLAP’s executive director.

Mesure said Menkes’ work, as well as the City of Toronto’s mandatory bird-friendly building guidelines, which affects projects started after 2010, are a step in the right direction — but legislative action is needed.

“We desperately need to find a way to make this included in the environmental law,” he said.

Ecojustice lawyers are expecting a federal court ruling in a similar suit against another property owner, Cadillac Fairview Corp., in early December.

Cadillac Fairview faces three charges under the Species at Risk Act, the Environmental Protection Act and the Ontario Society for the Prevention of Cruelty to Animals Act, after more than 800 birds died or sustained near-fatal injuries when they collided with the Yonge Corporate Centre, in north Toronto, between March and November 2010.

About 10 of those birds, including Canada warblers and olive-skinned flycatchers, are listed as “threatened” in the federal Species at Risk Public Registry.

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